Sierra Club, Nonprofit Corp. v. BNSF Ry. Co.

SIERRA CLUB, a California nonprofit corporation, et al., Plaintiffs, v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.

CASE NO. C13-967-JCC

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

October 25, 2016

THE HONORABLE JOHN C. COUGHENOUR

ORDER DENYING PLAINTIFFS' AND DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT

This matter comes before the Court on Plaintiffs' motion for partial summary judgment (Dkt. No. 197) and Defendant's motion for summary judgment (Dkt. No. 200). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES the motions for the reasons explained herein.

I. BACKGROUND

The above-captioned matter is a Clean Water Act (CWA) citizen lawsuit in which seven environmental advocacy organizations allege that BNSF Railway Company—an operator of railway lines that run from Wyoming to Washington—violates federal law by allowing its railcars to discharge coal and related pollutants into protected waterways within Washington. (Dkt. No. 113.) Plaintiffs are Sierra Club, Puget Soundkeeper Alliance, RE Sources for Sustainable Communities (RE Sources), Columbia Riverkeeper, Friends of the Columbia Gorge, Inc., Spokane Riverkeeper, and Natural Resources Defense Council (NRDC). (Id.) Plaintiffs allege that each organization has members who "live, work, and recreate in the State of Washington." (Id. at ¶ 12.) They seek declaratory and injunctive relief against BNSF under the CWA for the allegedly unpermitted discharges, as well as "remedial relief, the imposition of civil penalties, and the award of costs, including attorney and expert witness fees." (Id. at ¶ 6.)

Plaintiffs base Defendant's CWA violations on the alleged fact that "[e]ach and every train and each and every rail car discharges coal pollutants to waters of the United States when traveling adjacent to, over, and in proximity to the waters of the United States." (Id. at ¶ 48.) Plaintiffs allege that each time a BNSF train carrying coal travels through the state of Washington it discharges coal pollutants "through holes in the bottoms and sides of the rail cars and by spillage or ejection from the open tops of the rail cars and trains." (Id. at ¶ 51.) Such discharges are alleged to be

[E]specially frequent or severe when the[] coal trains pass over rough rail tracks, track changes, bridges, and switches; during transportation of coal over bumpy terrain, in windy conditions, at high operating speed, during steep descents and ascents and through sag-areas spanning steep ascent and descent reaches of track[]; during and after precipitation events; at moments of high crosswinds; and during derailments.

(Id. at ¶ 53.) Because BNSF has "never obtained a NPDES [National Pollution Discharge Elimination System] permit allowing its discharges of coal pollutants . . . from rail cars and trains[,]" Plaintiffs allege that each discharge constitutes an unpermitted and unlawful discharge under the CWA. (Id. at ¶ 60.)

On August 19, 2016, both parties moved for summary judgment. (Dkt. Nos. 197, 200.) Both parties raise three issues in their briefing: Article III standing, liability for alleged CWA violations, and preemption of CWA remedies by the Interstate Commerce Commission Termination Act, 49 U.S.C. § 10101 et seq., (ICCTA).¹

II. DISCUSSION

A. Motion for Summary Judgment Standard

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In making such a determination, the Court must view the facts and justifiable inferences to be drawn there from in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary judgment is properly made and supported, the opposing party "must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). Material facts are those that may affect the outcome of the case, and a dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248-49. Conclusory, non-specific statements in affidavits are not sufficient, and "missing facts" will not be "presumed." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990). Ultimately, summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

The parties agree that the evidentiary standard in this case, preponderance of evidence, can be met by circumstantial evidence. (Dkt. No. 293 at 5) (citing In re Exxon Valdez, 270 F.3d 1215, 1232 (9th Cir. 2001)). However, "at this stage of the litigation, the judge does not weigh conflicting evidence with respect to a disputed material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Anderson, 477 U.S. at 249).

Where parties have filed cross-motions for summary judgment, "[e]ach motion must beconsidered on its own merits." Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1135-36 (9th Cir. 2001). However, in this case, the arguments set forth in the parties' summary judgment motions are the same as those set forth in their oppositions to the opposing parties' summary judgment motion. The Court will therefore address the motions together.

B. Article III Standing

Standing, which is an "essential and unchanging" requirement of federal jurisdiction, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), requires that parties have "a personal stake in the outcome of the controversy [so] as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends." Allen v. Wright, 468 U.S. 737, 770 (1984). When, as here, an organization seeks to invoke federal jurisdiction, it must prove "(a) its members would have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purposes; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 343 (1977). At issue in these motions is whether a member of one of the Plaintiff organizations would otherwise have standing to sue in his or her own right.

To maintain an action in federal court, a member of one of the Plaintiff organizations must show: (1) the member has suffered or will suffer a concrete and particularized "injury in fact," (2) the injury is fairly traceable to the conduct complained of; and (3) the injury is likely redressable by a favorable decision. Defs. of Wildlife, 504 U.S. at 560-61. The CWA's citizen suit provision "extends standing to the outer boundaries" set by Article III of the Constitution. Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000) (citing Middlesex Cnty. Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 16 (1981)). "In response to a summary judgment motion, however, the plaintiff can no longer rest on such 'mere allegations,' but must 'set forth' by affidavit or other evidence 'specific facts,' Fed. Rule Civ.Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true." Defs. of Wildlife, 504 U.S. at 561.

Defendant attacks Plaintiffs' standing on many fronts and this standing analysis has many moving pieces. First, the Court will discuss Plaintiffs' argument that only one plaintiff needs standing for the case to proceed. (Dkt. No. 267 at 11.) The law is clear that "only one [p]etitioner must establish standing to enable review." Sierra Club v. U.S. EPA, 762 F.3d 971, 976 (9th Cir. 2014) (citing Massachusetts v. EPA, 549 U.S. 497, 518 (2007)). Defendant concedes that Plaintiffs Sierra Club, Columbia Riverkeeper, Puget Soundkeeper Alliance, and NDRC may have standing for Colony Creek, Horsethief Lake, Klickitat River, Little White Salmon River (Drano Lake), White Salmon River, and Wind River. (Dkt. No. 293 at 2 n.1.)² However, the fact that four plaintiffs may have standing for six waterways does not necessarily mean that the Plaintiffs have standing for all of the waterways in Washington that BNSF trains pass.

Therefore, the Court next addresses Defendant's argument that Plaintiffs do not have standing because they "cannot use a limited number of waterbodies in a representative capacity to establish standing for all waterbodies in the state" because each discharge into each waterbody constitutes a separate violation of the CWA. (Dkt. No. 200 at 14.) Defendant made the same argument in a motion to dismiss over two years ago (Dkt. No. 66 at 7), which the Court denied. (Dkt. No. 77.) This Court held that "[s]uch a burden would undoubtedly be a herculean task given the scope of Plaintiffs' allegations." (Dkt. No. 77 at 10.) Plaintiffs do not dispute that they have not provided standing witnesses for each and every waterway identified in this matter. (Dkt. No. 197 at 41.) However, Plaintiffs ask this Court to adopt the holding of Alaska Center for Environment v. Browner, 20 F.3d 981 (9th Cir. 1994), in order to confer standing for their alleged CWA violations at all the waterways at issue. (Dkt. No. 197 at 43.)

In Alaska Center for Environment, plaintiffs brought a citizen suit against the Environmental Protection Agency (EPA) to implement the CWA's provisions concerning total maximum daily loads to achieve water quality standards for impaired waterways in Alaska. 20 F.3d at 983. The EPA argued that the lower court erred in ordering statewide relief, and the relief...